Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

Opinion by Judge BYBEE; Concurrence by Judge WARDLAW; Concurrence by Judge BERZON; Dissent by Judge RYMER.

Richard Kesser seeks a writ of habeas corpus on the grounds that the prosecutor struck potential jurors on the basis of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). We hold that, in light of Miller-El v. Dretke, 545 U.S. 231 , 125 S.Ct. 2317 , 162 L.Ed.2d 196 (2005), the California Court of Appeal’s findings are “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d)(2). Accordingly, we reverse the judgment of the district court and grant the writ.

I

After the prosecutor struck three Native American women and one Asian woman from the jury in Kesser’s California murder trial, the court conducted an evidentia-ry hearing under People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978) (California’s equivalent of Batson), at defendants’ request. The prosecutor explained that he struck Debra Rindels, the only Native American on the regular panel, because she worked for a tribe…

with whom PAEZ and BERZON, Circuit Judges, join, concurring:

I join in the majority’s well-reasoned opinion; the trial court abdicated its duty under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), to determine pretext, with particularly egregious results here, in the face of raw pros- *372 ecutorial bias against Native Americans. I write separately to note my view that inherent in the Supreme Court’s equal protection jurisprudence, which spawned Bat-son and its progeny, the central question is whether the challenged decision was made with a racially discriminatory purpose. Washington v. Davis, 426 U.S. 229, 239 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). Where a prosecutor articulates both race-based and race-neutral reasons for striking a veniremember, Supreme Court precedent requires application of “but for” mixed-motive analysis to determine whether the strike violates the Equal Protection Clause. I would therefore grant habeas relief on the alternative ground that the California Court of Appeal’s failure to apply mixed-motive analysis was an unreasonable application of clearly established federal law, as determined by the Supreme Court. 28 U.S.C. § 2254…

join, dissenting:

The prosecutor at Richard Kesser’s 1995 trial in California state court exercised a peremptory challenge based in part on a prospective juror’s Native American ethnicity and later struck two Native American alternates. The trial court rejected Kesser’s Wheeler / Batson objection 1 and the California Court of Appeal affirmed his conviction, finding that the prospective juror’s race was not the only or primary reason for the challenge and that the race-neutral reasons given by the prosecutor were not a pretext for group bias. Kesser petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the peremptory challenge violated the Equal Protection Clause of the Fourteenth Amendment. The district court denied the petition under the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), and certified the Bat-son issue for appeal.

In this posture the question before us is narrow: Was the California Court of Appeal determination upholding the peremptory challenge based on a “mixed motive” contrary to, or an unreasonable application of,…

concurring:

I join in the majority opinion and Judge Wardlav/s persuasive concurrence. I add, however, the following observations: Because this case arises as a petition for a writ of habeas corpus, we cannot and do not address directly the constitutional standard properly applicable at the second stage of the inquiry under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Instead, we are restricted to deciding whether the state court decision is contrary to, or involved an unreasonable application of, “clearly established” Supreme Court law. 28 U.S.C. § 2254 (d)(1). I agree with Judge Wardlaw that it is at least true that, under “clearly established” Supreme Court law, the Bat-son standard is no less protective of racial equality than the standard applied in Equal Protection Clause cases generally.

There is, however, a strong argument that the Batson standard should be stricter than the one Judge Wardlaw ably explicates as generally embedded in Equal Protection Clause cases. See Wilkerson v. Texas, 493 U.S. 924 , 110 S.Ct. 292 , 107 L.Ed.2d 272 (1989) (Marshall, J., dissenting from denial of certiorari). In a ease arising on direct appeal rather than on…

465 F.3d 351 Richard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee. No. 02-15475. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 13, 2005. Filed September 11, 2006. * William Weiner, Law Offices of William Weiner, San Francisco, CA, for petitioner-appellant Richard Kesser. Russel Covey, Costa Mesa, CA, for petitioner appellant Jennifer Leahy. Michael E. Banister, Deputy Attorney General, San Francisco, CA, for the appellee. Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, Magistrate, Presiding. D.C. No. CV-96-03452-PJH. Before: SCHROEDER, Chief Judge, KOZINSKI, O'SCANNLAIN, RYMER, KLEINFELD, WARDLAW, PAEZ, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and BEA, Circuit Judges. Opinion by Judge BYBEE; Concurrence by Judge WARDLAW; Concurrence by Judge BERZON; Dissent by Judge RYMER. BYBEE, Circuit Judge: Richard Kesser seeks a writ of habeas corpus on the grounds that the prosecutor struck potential jurors on the basis of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 , 106…